MedPoint: ‘A judicial interpretation of the law will not alter the political assessment of what happened…’

Interview: Milan Meetarbhan

‘I trust that Paul Berenger will also stand by the pledge he took in 2014 to have a mandate from the people for electoral reform and that he will not condone changes, in an election year’

Milan Meetarbhan, well-known constitutional expert and author of a book on the Constitution of Mauritius as well as political observer, shares with our readers his nuanced views on the fallout of the Medpoint affair to be taken up by the Privy Council and discusses the potential scenarios of alliances and coalitions given that we are in a pre- or election year. He also highlights the issues that are likely to figure during the electoral campaign.

Mauritius Times: 2019 promises to be an eventful year in view of the imminence of general elections by the end of the year or early next year. What are the major developments you expect to happen in the months preceding the elections?

Milan Meetarbhan: All the pundits seem to be saying “Buckle up for 2019!” Not only because we may, or rather we should, have elections this year but also because of global events that may have a major impact. A slowdown in the world economy is expected during 2019 and some economists foresee a recession over the next couple of years following the ten-year cycle that started after the financial crisis in 2008. Brexit and the impending trade wars will no doubt further complicate matters.

On the domestic front whether the government is prepared to face an election this year or not, Parliament, unless sooner dissolved, will automatically stand dissolved in December 2019 in accordance with section 57 (2) of the Constitution. Though postponing the elections up to May 2020 would be in accordance with the letter of the law, the government would be ill-advised to take advantage of the legal provisions to hang on to power for a few more months.

The backlash from public opinion could be very damaging for them.

There has been a lot of public debate about the legitimacy of the present prime ministership which has been dealt a severe blow since it’s been devalued to the status of a family heirloom. Serious questions will be raised about the legitimacy of the lame duck/caretaker government clinging to power after the formal end of its term of office. They will only compound the initial cavalier treatment of the spirit of our democracy hiding under the cloak of legality when power was transferred from father to son.

It is true that the law which enables the government to delay the elections has been invoked before. But that was over three decades ago and global and domestic norms regarding democratic norms have moved on considerably since then. In any case, if it was wrong then it is certainly worse now that the decision is taken by someone holding the office of Prime Minister who never got a mandate from the people and still seeks to extend his tenure of office.

Whether the elections are actually held in the course of 2019 or later, 2019 is bound to be a year when we have active campaigning on all sides (for some it has never stopped since 2015) and manoeuvring for all possible permutations and combinations, which is now part of Mauritian political folklore.

In short, we should expect that on the government side there would be systematic targeting and vilifying of the leader of the Labour Party as well as a lot of goodies for the populace even if this means a scorched earth policy. It has been reported that this is what the strategy was in 1995 but fortunately this was thwarted by some responsible ministers in the then Cabinet. Do we presently have Ministers of the same calibre and sense of duty who will be in a position, for the sake of the nation, to stop the potential kamikaze acts of a desperate leader?

On the opposition side the situation is somewhat complicated as some may be waiting in the wings to join an alliance or at least keep all their options open and thus avoid being too critical of the government. For the rest of the opposition we can expect that the strategy will be to attack a scandal-ridden government and its failed economic policies.

* Many people expect that the decision of the Privy Council in the MedPoint case will shape the course of events for the rest of the year. First of all, tell us what really is at stake in this case and what is being expected from the Judicial Committee of the Privy Council?

I cannot make any forecast as to what the outcome of this case could be when the hearing on the appeal case has not even taken place yet.

My own views on the possible impact of this judgment are slightly more nuanced than those of many commentators. I believe that whatever the judgment is and the spinning by either the ruling party or the opposition (depending on what the court’s decision is) in the weeks following the decision, the actual impact on the future course of events over the year may not necessarily be what some commentators are suggesting.

I believe that contingency planning in case their Lordships are not prepared to uphold the decision of the Supreme Court may still allow for implementation of the initial strategy should the government wish to do so. In any case I do not believe that the opposition, except for those who may be waiting in the wings to join a future alliance, should build their own strategy on the outcome of the case.

* The latest we hear about this case is the latter-day stand taken by ICAC which is now aligning itself with the legal stand of the PM’s counsels. Rather surprising that it’s the same institution which conducted the inquiry in the MedPoint case and went on to press charges against Pravind Jugnauth, isn’t it?

If the press reports are right, there will no doubt be a number of questions about the propriety of ICAC’s decision to intervene in support of the case for the Respondent when it was the initial prosecutor whatever the merits of its legal arguments may be. There were questions being asked already at the time with regard to ICAC’s handling of the case before the trial court, until the DPP’s Office took over conduct of the case. It must be recalled that an appellate court will normally hear arguments only on issues raised before lower courts. Thus the scope of the appeal may be restricted by decisions taken after the general elections.

The most recent development as revealed by the media is, if accurate, potentially damaging to ICAC. It would in my view, have been more appropriate given the circumstances of this case and the provisions of the law regarding appointments and conditions of service at ICAC for the institution to stick to its reported undertaking to abide by the decision of the court. Whatever the outcome of the appeal will be, there may already be serious collateral damage which further erodes the credibility of ICAC and the trust that the people have in the institution.

* Do you think the ICAC’s latest stand will have a bearing on the outcome of the case? How will the Law Lords react to that?

We can expect the Law Lords to give due consideration to submissions made by all parties. However their Lordships may also wish to understand why ICAC which initiated the proceedings before the elections, supported the charges before the trial court and the supreme court and then decided not to make any submissions before the Privy Council now seems to have had a change of heart.

* Notwithstanding the latest development in the MedPoint case, do you think a favourable decision for the current Prime Minister will have a major impact on the MSM’s prospects at the forthcoming elections?

Whilst a favourable decision for Pravind Jugnauth may clear the way for certain potential allies, boost the morale of a faltering party and also give new ammunition to the MSM’s spin doctors, I do not see the Privy Council’s upholding of the Supreme Court judgment impacting directly on the decision of voters at the next elections. I am surprised at how public opinion seems to have grasped the intricacies of the Medpoint case and a judicial interpretation of the law will not alter the political assessment of what happened over Medpoint.

* What if the Privy Council rules anyway in favour of the DPP? What happens next for the Prime Minister in terms of his current tenure as the head of government?

From a strictly legal perspective, Section 36 of the Constitution provides that the seat of a member of the National Assembly becomes vacant if the Member is sentenced by a court in any part of the Commonwealth to a term of imprisonment exceeding 12 months. However the question of whether a convicted person remains in office is one of ethics and respect for democratic norms rather than just a legal question.

If a person holding the office of Prime Minister is convicted of an offence and if he has the decency not to seek a pardon from persons appointed by the Executive, then having exhausted all legal avenues he should have no choice but to resign. This is what would happen in any mature democracy. But in a country where some have consistently taken the view that what is not expressly prohibited by law is necessarily acceptable, one cannot exclude the possibility of such a convicted person continuing in office and claiming that since the people are the final arbiter he will seek a fresh mandate to carry on.

* There is also the current leader of the Labour Party facing charges in the cases relating to incidents at his Roches Noires bungalow and the alleged money laundering case in the wake of the police search at his residence. Do you expect these two cases coming to a head in the thick of the electoral campaign or even reaching a closure prior to the next elections?

I believe that even if trial courts do give judgments in these cases before the elections, it is unlikely that final decisions will be handed down within the next year. It would be almost impossible for appeals to be heard and determined within such a short period of time.

* What will be the consequences either way for the LP leader and his party?

I expect that the government will focus on the alleged moral lapses of the leader of the Labour Party rather than on the policies he advocated whilst in office or those he may be canvassing in the forthcoming elections.

The ruling party has over the past few months been giving advance publicity of the prominence it will give during the campaign to the issue of morality. Whilst attacking his opponent on this issue Pravind Jugnauth has also sought to portray himself as a virtuous family man. By making his family and his private life a public issue, he is taking the serious risk of having his opponents shedding any inhibition from talking about his own private life and family since he has himself chosen to make these live issues in the public arena.

Furthermore making morality a central plank of the campaign could also mean that the debate shifts to public morality as opposed to private morality. On this score it is obvious that the purported defenders of morality will have far more explaining to do. On both counts they may in fact be hoisted by their own petard.

I believe that whilst many die-hard Labour supporters, and there are still many of them in the country, will support the Labour leader come what may, other voters who may be swayed by the campaign of vilification that will be unleashed against the Labour leader may still vote Labour because they find that keeping the present regime in power is a greater evil.

Those voters who decide not to support Labour because of the allegations against its leader are unlikely to vote for the MSM whose record they may consider to be even worse. They would probably abstain. The question then would be who ultimately benefits from such abstention.

* Both the two major parties, the Labour Party and the MMM have been saying they will fight the next elections on their own. Do you see the LP doing without the PMSD and the MMM without the MSM?

Indeed we seem to be facing, at this point in time, a rather unusual political landscape as each of the major parties claims that it will be going into the elections on its own. Even if the playing field is likely to change in the coming months, it is still significant that as we start an election year we still don’t know what the political alliances are likely to be. We should remember, though, that a week can be long time in politics. In 2000, two parties which were at each other’s throat on a Saturday announced on Monday evening, just before Nomination Day, that they will fight the elections as allies.

What could still bring about a dramatic change to the dynamics of the campaign is if the opposition parties decide that the national interest requires that they have a strong common front against the present regime and that the cost of achieving this is that the common front should not be led by any of the present leaders of these parties.

If there were to be an alliance of opposition parties to address serious economic challenges and put the country back on its democratic path, and the present leaders of these parties were to choose as leader of this alliance someone who can make it easier for such an alliance to materialise and to win the elections so as to stop the downward slide of the country, these leaders may decide that the best option is for them to appoint an “outsider” as leader of the common front.

This would obviate the need for the present leaders to overcome the hurdle of choosing one of them as leader.

The appointment of an “outsider” who would be a leader acceptable to the opposition parties and to public opinion, could make it easier to constitute the common front and for the parties to work together post-election. The new leader would not necessarily have to be someone from outside the constituent parties but would have to be someone with experience of government and a proven track record in terms of mastery of policy issues.

This would radically alter the game.

* Wouldn’t a three- or four-cornered fight at the next elections be worth considering next time round? For one, that would surely cut down some family parties and other pressure groups to their proper size, wouldn’t it?

The debate in the Mauritian context is really about a pre-election alliance or a post-election coalition as alliances seem to be a given. No part of the nation should feel excluded from being involved in running the country and this can often be achieved through an alliance or coalition.

We have had much more of pre-electoral alliances though we had a post-election coalition soon after independence and after the 1976 elections. In 1990, three years after an election, the PM’s party and the official opposition party formed a coalition government which excluded two of the parties that were part of the alliance that had won the elections.

A multi-party contest as opposed to the traditional two-cornered fight will really be meaningful if there are competing policy options on offer. But the dominant themes in Mauritian politics are often based on personalities, ethnicity, ‘clientelisme’ and as one party leader put it “money politics”.

In principle a pre-electoral alliance based on a common policy platform would in my view be preferred as it gives the winning alliance a mandate from the people to implement these policies. But I concede that this is what stands good in theory but is not always the case in practice.

A post-election coalition may at times be the only option available if no single party has a clear majority, but on the other hand this is often based on a hastily agreed patchwork of a government programme for which there is no mandate from the people.

* There is however the need to get different voices heard on matters of public interest be it in relation to the environment, energy options or economic policies, etc. But as matters stand, the current electoral system does not make room for such voices in Parliament. Would it be too risky to overhaul the system presently in place?

The fundamentals of Mauritian political contests will have to evolve with time to more mature debate on policies because this is what the new generation of voters will expect. This will promote a more participative democracy where identity politics will make room for issue-based politics. Unfortunately the public discourse in recent times whether in parliament or at events given wide coverage on state TV does not give much hope for change.

A change in the electoral system alone will not alter the political culture which has remained more or less the same since the 60s. Parties which are more responsive to the concerns of the electorate will be forced to change their culture and focus more on policy alternatives.

* What about younger and new faces? To what extent do you expect that traditional parties will make room for them bearing in mind that the induction of younger and new faces in the current governing alliance has not been really encouraging to say the least?

I believe that renewal is the very essence of a democracy. Political parties have to ensure constant renewal in their membership and ideas. However new ideas do not always come only from newer members. We have seen in the last elections in the USA and the UK that two politicians, Bernie Sanders who was in his mid-70s and Jeremy Corbyn in his late 60s attracted a lot of support from young voters because they came up with innovative ideas.

Age per se is not the issue. On the other hand, we have also seen over the last couple of years in our own country that where the father hands over the baton to his son who is 30 years younger, neither the public discourse nor the deeds have changed.

The key battle is over new ideas and policies. These will often come from younger generations of voters and leaders but can also come from more seasoned politicians unless the latter are stuck in a time warp and fail to renew themselves or their parties.

* It’s not likely the current government’s proposed electoral reforms will be adopted before the next general elections – unless the MSM is prepared to give in to the MMM’s demands. How much more can the MSM offer than what the LP did in Dec. 2014 for it to buy in the MMM into an electoral alliance?

The MSM had an opportunity in 2002-2003 to adopt electoral reform based on recommendations of an independent commission. In 2014 it again failed to support the Government’s proposals for electoral reforms. It has now come up with proposals of its own and denounces those who do not support its proposals as reactionaries.

Some have made the whole issue of electoral reform a question of numbers: How many PR seats will we have? There are dozens of systems for allocation of PR seats. The debate should be about the system best suited to the needs of our country. It has been anything but. The system proposed by the MSM is one which actually reinforces the inequities of the present electoral system and in addition it introduces the retrograde step of allowing party leaders to appoint their nominees to Parliament. We have not had nominees in the Assembly for over 60 years and the MSM wants to reintroduce this, twenty years into the 21st century.

We cannot say that the present electoral system is not right and yet make sure that the same system is used to appoint PR members and is used again to enable party leaders to appoint additional members.

On a separate note, I wish to say that even if the proposed reforms do not obtain the required number of votes, there is nothing which prevents political parties from taking it upon themselves to implement the proposals on gender representation. They can increase the number of women candidates without being compelled to do so by law. Those who have suddenly become ardent proponents of electoral reform can show their good faith and implement the measures on women representation even if the proposed constitutional amendments do not go through.

Paul Berenger’s stand over the proposals is a commendable one as in spite of his strong commitment to electoral reform he did not support the MSM proposals which would only amplify what is wrong with the present system. I trust that Paul Berenger will also stand by the pledge he took in 2014 to have a mandate from the people for electoral reform and that he will not condone changes, in an election year, which are agreed between two political leaders and not by the people.

* The tone has been set with the PM’s end-of-year announcement of free tertiary education in public institutions. More is likely to come before the dissolution of Parliament. Does the Electoral Supervisory Commission have the powers to ensure free and fair elections?

The powers of the ESC in Mauritius have been construed as those basically limited to the conduct of polling. Unlike the Indian Electoral Commission for example which oversees the electoral campaign, its Mauritian counterpart does not really do so. The fact that the present government has made highly contested appointments to the Electoral Commission in defiance of public opinion is also a matter of concern. Appointments at the MBC and the IBA and new licences issued to private radio stations in an election year are also clear signs of things to come. The fact that the broadcasting authority which theoretically can check abuses is still called “independent” in spite of the appointments made to that body makes a mockery of public decency.

The question then is who monitors and enforces free and fair elections? If a government uses public funds to hold pseudo-events which are nothing short of political rallies, who sanctions this gross abuse of power? If the MBC acts as an overt tool of government propaganda, who sanctions this? Will it be an “independent” authority stuffed with political activists and civil servants who report to their political masters?

* At the end of the day, what do you think will the main issues in the electoral campaign?

I have my views as to what the main issues in the campaign ought to be. But I do not believe that these are the issues that will actually come up in the campaign.

Ideally, the campaign should focus on the main challenges facing the country, some of which are external ones. The challenges on the economic front have been brilliantly set out by Manou Bheenick in his interview to the Mauritius Times two weeks ago. Apart from these and at a broader level, I believe that the challenges facing a new government will be restoring confidence in the country and its institutions, namely the Police and independent regulators. Trust cannot be demanded but must be earned.

Inequality is not new but the world is now taking it more seriously. It’s not just a matter of social justice as its ramifications are much wider.

Ensuring good governance – Clean and Open government: accountability, transparency and meritocracy affect each and everyone and are not just academic issues of governance and morality. Parents and young people who invest in education are impacted by lack of meritocracy, clan loyalty and nepotism. These also deprive the country of the competencies that we require. Unless we improve on governance and meritocracy, our skilled people will either not come back or will want to leave. At a time when expected demographic changes will in any case impact on the economy we cannot further erode our manpower and consumer base.